State v. Ferrell, 14922.

• Decision Date: 05 March 1948
• Docket Number: No. 14922.,14922.
• Citation: 209 S.W.2d 642
• Parties: STATE v. FERRELL.
• Court: Texas Court of Appeals

209 S.W.2d 642

STATE v. FERRELL.

No. 14922.

Court of Civil Appeals of Texas. Fort Worth.

March 5, 1948.

Rehearing Denied April 2, 1948.

Appeal from District Court, Wichita County; Temple Shell, Judge.

Proceeding by the State of Texas against Mary Kathryn Ferrell under the provisions of Vernon's Ann.Civ.St. art. 2338 — 1, to have defendant declared a delinquent child, she being under 18 years of age. From an adverse judgment, the State appeals.

Reversed and remanded with instructions.

Elmer H. Parish and Ray Martin, both of Wichita Falls, for appellant.

J. W. Friberg, Davenport & Anderson, and John Davenport, all of Wichita Falls, for appellee.

McDonald, Chief Justice.

On August 1, 1947, Mary Kathryn Ferrell shot and killed her husband. This proceeding was brought to have her declared a delinquent child, she being under eighteen years of age, under the provisions of Art. 2338 — 1, Vernon's Ann.Civ.St.

On the day of trial she filed a written plea alleging that she was in such mental condition at the time of the shooting that she did not realize what she was doing and did not know right from wrong. The County Attorney moved to strike the plea of insanity, but the motion to strike was overruled, and evidence was admitted on the question of insanity.

Two issues were submitted to the jury. The first, answered in the negative, inquired if Mary Kathryn Ferrell was a delinquent child. The second, answered in the affirmative, was: "Do you find from a preponderance of the evidence that Mary Kathryn Ferrell is not a delinquent child by reason of insanity at the very time of the shooting, if any, of James Edward Ferrell?"

The County Attorney and the District Attorney appeal on behalf of the State, presenting twelve points of error. Under the first three they argue that insanity is no defense in a proceeding such as this. They argue that the shooting was a felony, whether she was insane at the time or not, and that the only consequence of her being insane would be that she could not be punished for her act, citing Article 34 of the Penal Code. Art. 2338 — 1 provides that one is a delinquent child who violates any penal law of this state of the grade of felony. It is our opinion that Mary Kathryn Ferrell was not guilty of a felony if she was insane at the time of the killing. 12 Tex.Jur., p. 286; 24 Tex.Jur., p. 387; 14 Am.Jur., p. 788 et seq.; Kiernan v. State, 84 Tex.Cr. R. 500, 208 S.W. 518.

The petitioner objected to the insanity plea on the ground that the State had not had opportunity to make preparation to meet the insanity plea, whereupon the Court advised the petitioner that the case would be continued for a week if necessary in order to give the State time to meet the insanity defense. Instead of availing himself of the delay thus offered, the petitioner proceeded at once with the trial. We see no reversible error.

In submitting the two special issues to the jury, the Court submitted eleven numbered instructions, one of which pertained to the burden of proof on the insanity question. The instruction reads in part as follows:

"It is not necessary under the law that the insanity of Mary Kathryn Ferrell should be established beyond a reasonable doubt; but the burden is upon her to establish it to your satisfaction by the weight or preponderance of evidence, such and so much proof as to reasonably satisfy you of the existence of insanity at the time; and if you do so find or if you have a reasonable doubt thereof, you will find that Mary Kathryn Ferrell is not `a delinquent child,' by reason of insanity."

The charge on the burden of proof as to insanity was confusing. Under some of the language of it the burden was properly cast upon Mary Kathryn Ferrell to prove insanity by a preponderance of the evidence but from the use of the expression "if you have a reasonable doubt thereof, you will find that Mary Kathryn Ferrell is not `a delinquent child,' by reason of insanity" the jury could well have been led to believe that the burden was upon the State to prove her sanity beyond a reasonable doubt. It has been held by the Court of Criminal Appeals that the burden rests upon the defendant to prove that he was insane at the time of and with regard to the particular act. Leache v. State, 22 Tex.App. 279, 3 S.W. 539, 58 Am.Rep. 638; Trahan v. State, 117 Tex.Cr.R. 320, 35 S.W.2d 169; Querner v. State, 127 Tex.Cr.R. 410, 76 S.W.2d 520. The error in the instruction of the court could have influenced the verdict here, especially in view of the weak character of the testimony regarding insanity. It is undisputed that Mrs. Ferrell and her husband engaged in a quarrel just before and just after they went to bed; that Ferrell arose and lighted a cigaret and Mrs. Ferrell did likewise; that Ferrell lay back down on the bed, smoking the cigaret; that Mrs. Ferrell took a pistol from a dresser drawer in the room, and stood at about the foot of the bed; that Ferrell told her that she ought to put the pistol away, that she might get into trouble; that she then shot him twice as he lay on the bed smoking the cigaret. There is no...